1 206 Judicature Volume 84, Number 4 January-February 2001 What does it mean to be a good lawyer?
2 Prosecutors, defenders and problem-solving courts An edited transcript of a discussion among a judge, attorneys, a court administrator, and academics. Edited by John Feinblatt and Derek Denckla Introduction In recent years, lawyers throughout the criminal justice system have been challenged to re-think their roles as well as the nature of advocacy itself. One of the principal forces driving this reconsideration has been the emergence of problem-solving courts experimental courts that are testing new solutions to persistent problems such as drug addiction, domestic violence and neighborhood JOHN FEINBLATT is director of the Center for Court Innovation. DEREK DENCKLA is a senior planner at the Center for Court Innovation. disorder. Problem-solving courts which include drug courts, domestic violence courts, mental health courts, community courts, and others encourage prosecutors and defenders to think in new ways about the problems that are fueling their caseloads. In particular, they ask these lawyers to get involved in changing the behavior of offenders and ensuring the fu- ture well-being of communities. This is a significant departure from business as usual. Advocates of problemsolving courts have argued that the standard adjudicatory process is not always well-suited to deal with multidimensional problems like drug addiction, domestic violence, and mental illness. They have also argued state courts often do not produce case dispositions of lasting benefit to victims, to communities, or to the offenders themselves. This critique has helped stimulate the rapid proliferation of problemsolving courts. Today, there are several hundred problem-solving courts in operation around the country, with the prospect of hundreds more opening their doors in the years ahead. This wave of experimentation and innovation raises some important questions for prosecutors and defenders. In what ways do problemsolving courts depart from the standard adversarial system? What impact, if any, does the rapidly changing landscape have on defenders ethical obligations? Do problemsolving courts shift the balance of power in the courtroom? Do the new procedures that are being tested in problem-solving courts impinge upon due process protections? And is there a need for new standards of effective lawyering at problem-solving courts? These are just a few of the questions that are being examined by the U.S. Department of Justice s Office of Justice Programs, the Open Society Institute, and the Center for Court Innovation as part of a twoyear exploration of problem-solving justice. The centerpiece of this investigation has been a series of roundtable conversations with leading judges, lawyers, academics and court administrators from around the country. The first such discussion, held in December 1999, was dedicated to the role of the judge in problem-solving courts. In that discussion, participants discussed the growth of problem-solving courts, identifying a variety of driving forces behind the movement, including the failures of other government efforts to solve problems like addiction, mental illness, and quality-of-life crimes. But mostly they pointed to increasing frustration both among January-February 2001 Volume 84, Number 4 Judicature 207
3 the public and among system players with traditional case processing and case outcomes. (See What is a Traditional Judge Anyway?: Problem Solving in the State Courts, Judicature (September/October 2000). What follows is an edited transcript from a second roundtable discussion about problem-solving courts held in March 2000 in Washington, D.C. This conversation, which included prosecutors and defense attorneys as well as a judge, a court administrator and various academics, focused on the role of advocates in problem-solving courts. Moderator Francis X. Hartmann, Executive Director, Program in Criminal Justice Policy, John F. Kennedy School of Government, Harvard University Participants Robert C. Boruchowitz, Director, The Defender Association, Seattle, Washington Cait Clarke, Lecturer, Harvard University, Kennedy School of Government Ronald Earle, District Attorney, Travis County, Texas Douglas F. Gansler, State s Attorney, Montgomery County, Maryland Elizabeth Glazer, Chief, Crime Control Strategies, United States Attorney, Southern District of New York John Goldkamp, President, Crime and Justice Research Institute and Professor, Temple University John Greacen, Director, Administrative Office of the Courts of New Mexico Hon. Judy Harris Kluger, Administrative Judge, New York City Criminal Court Cliff Keenan, Counsel on Community Prosecution, Office of Justice Programs, U.S. Department of Justice Esther Lardent, President, Pro Bono Institute, Georgetown University Law Center Effective lawyering Francis X. Hartmann: I d like to start by developing some context for our discussion of the role of lawyers in problem-solving courts. So let s kick off with the question: What does it mean to be a good lawyer, an effective lawyer, in the criminal justice system? Ronald Earle: Effective advocacy depends on who the client is. Who is the client of the defense lawyer? Well, first, it s the individual accused. But I suggest that the defense lawyer has a second client and that is the commu- Michele Maxian, Attorney-in-Charge, Criminal Defense Division, The Legal Aid Society, New York City Patrick McGrath, Deputy District Attorney, San Diego, California James R. Neuhard, Director, State Appellate Defender s Office, Detroit, Michigan Scott Newman, Marion County Prosecutor, Indianapolis, Indiana John Stuart, Minnesota State Public Defender, Minneapolis, Minnesota Kim Taylor-Thompson, Professor of Clinical Law, New York University School of Law Anthony Thompson, Associate Professor of Clinical Law, New York University School of Law Jo-Ann Wallace, Chief Counsel, National Legal Aid and Defender Association Robert Weisberg, Edwin E. Huddleson Jr. Professor of Law, Stanford Law School nity. The community has an interest in maintaining individual freedom and, therefore, the defense lawyer has an interest in the community. The prosecutor represents, of course, the victim, but also represents the community s interest in public order. It seems to me that what both the prosecutor and the defense lawyer have in common is the community. So one way that problemsolving courts enhance effective advocacy is by bringing the community into the court, making the community a part of the process, and reweaving the fabric of that community. In a problem-solving courtroom, the judge and the lawyers have an explicit responsibility to reach an outcome that is positive for everybody concerned. That is different than a regular win-lose courtroom. So we are looking at an evolution toward and I hesitate to use this phrase a kind of win-win law. It seems to me that the goal of each case in a problem-solving court is to achieve a winwin outcome for everybody the defender, the community and the victim, if there is one. Hartmann: That s a very broad definition of advocacy. From a defender s point of view, what is effective lawyering? Jo-Ann Wallace: In my view, effective advocacy meant that I was successful at making the system treat my client fairly and with dignity. I think that, broadly speaking, defense attorneys serve the community, but the community is not their client. In fact, in many instances you could not represent the community and your client, because you would have a conflict of interest under the rules of ethics. At the end of the day, I think that attorneys serve the community when they re zealously advocating for their client. John Stuart: What I would like to see come out of the lawyering that I do is better life outcomes for my clients. My role is to give people free- 208 Judicature Volume 84, Number 4 January-February 2001
4 dom from destructive justice. As I do that work, I also have a lot of hope for these clients. I m hoping that somehow they will come out of this spell of trouble that they are in and that their best self will emerge, that they will use this freedom to come back into a community and make better choices. James R. Neuhard: Is there a way for a defender to really address the problems in their client s lives rather than just continuing in the role as a defensive shield? I m not sure I can find the way through that thicket, but it is certainly something I yearn for. Now, that is not a traditional role for a defense lawyer. The traditional measure of success for a defense lawyer is seeking the least government-imposed restrictions on your clients freedom. Hartmann: I m hearing a theme of yearning, a yearning to be able to carry through on a broader vision beyond just getting the client off in a particular case. Is this yearning shared by the rest of you? Kim Taylor-Thompson: I take issue with the notion that defense lawyers should have a yearning to do more than get their clients out of the system. When I get my client s case dismissed, charges reduced or sentence shortened, my yearning is satisfied. If the client needs or wants treatment, they should be able to gain access to it outside of the coercive atmosphere of a criminal proceeding. Michele Maxian: I think that an attorney is effective when they effectuate the wishes the counseled wishes of their client. I believe in better life outcomes for my clients, but I want to know who defines what the better life outcome for my client should be. I accord the client the dignity to tell me that herself. Douglas F. Gansler: I m not sure about this broader vision for either prosecutors or defenders. A defense lawyer s job is really to keep innocent people out of jail in order to main- The traditional measure of success for a defense lawyer is seeking the least governmentimposed restrictions on your client s freedom James R. Neuhard tain the public s confidence in the integrity of the system as a truth-finding institution. And what do prosecutors do? We put bad guys in jail. And we reduce crime. That s the goal of the whole system. Patrick McGrath: I think it s fair to say there s a sense of yearning out there. If you grab a judge, a defense attorney and prosecutor and sat them down together and bought them a round of drinks, after a few beers, they ll all complain about the same thing: I have all this education and what do I do? I work on an assembly line. I don t affect case outcomes. I think in a lot of ways problem-solving courts are addressing all of our yearning to do more than just process cases. Cait Clarke: The defense bar s yearning is for more resources including both funding and human resources, like social workers not necessarily more problem-solving courts. Anthony Thompson: Resources are an important part of the story. Most urban lawyers can t concern themselves with what s best for their clients when they carry an active caseload of 500. It s just not possible. Public defenders may yearn for better life outcomes for their clients, but I have yet to see defenders promoted for seeking these outcomes. I spent a decade as a public defender and I ve spent the last few years training student prosecutors in New York City. I can tell you in both settings we have a culture that says, if you win and winning is narrowly defined as an individual case you are successful. How do we change that culture within district attorneys offices, within public defenders offices and within courts? Elizabeth Glazer: I think that is the $64,000 question: How do we change the culture? I would sort of rephrase it as: How do you change the incentives or change the goals? I think if you were to ask most prosecutors what their goals are, they would say: My job is to put bad guys away. That goal is endorsed by our education and by our culture which ratifies the case as the most important unit of success. Every prosecutor has in his mind and maybe every defense lawyer, too standing on the courthouse steps and announcing their victory in the John Gotti case, or their vindication of whomever the client is. That unit of success, I think, turns us into technicians, because that means that we simply process cases. If you were to change the goal slightly and say, Well, I think the goal is to reduce crime, that completely changes both the methods that you use, the partners you choose, and every single aspect of what you do. I think that lawyers are particularly well-placed but not very welltrained to be part of this new way of approaching problems. Coercion and paternalism Hartmann: Is there something about the structure of problem-solving courts that is more coercive than traditional court? Taylor-Thompson: If we re talking about a problem-solving court that seeks to address defendants issues pre-plea, then defenders become very concerned about excessive coercion. It becomes an impossibly difficult either/or question either you access treatment or you face trial. Worse still, you can opt to protect January-February 2001 Volume 84, Number 4 Judicature 209
5 your constitutional rights through a suppression motion and forego treatment or you can waive those rights and receive treatment. But, if you re talking about a court that offers defendants treatment or services presentencing or post-plea, then we re in a very different situation. There is far less coercion. Neuhard: I agree. A lot happens pre-conviction in problem-solving courts. More than in traditional criminal courts. I am concerned that what we are setting up is a wider net in the guise of help or treatment for our clients. Hartmann: What is your fear about a wider net? Neuhard: I fear that government will exert more control over my clients lives. There s a real danger in widening the net so early in the game with so little time to make a decision about whether to opt-in or opt-out. McGrath: Let s face it, in the traditional urban criminal justice system, defense lawyers don t have time to talk to their clients. You don t have time to investigate. You have completely coercive plea setups. You don t have time to do anything. Hon. Judy Harris Kluger: As it currently stands, many defendants are being pressured to take dispositions that don t ultimately do anything to help them. If we are going to have to apply that kind of pressure, isn t it better that the pressure is in a lifechanging direction toward services and treatment that can make a difference? Taylor-Thompson: It s not clear to me that we are pressuring defendants in a life-changing, positive direction. Problem-solving courts strike me as somewhat paternalistic in the way they pressure defendants to accept pre-ordained alternatives to incarceration. How are they making judgments about what the proper treatment modality should be for an individual? This is a complicated question. If we answer this question too quickly without making the complex assessment about what works for each person then I m not sure we re building a better system. Robert Weisberg: My sense is that problem-solving courts place a great deal of faith in drug rehabilitation and other treatment programs perhaps well deserved, perhaps not. It strikes me that those services exist on quite a continuum. Judge Kluger: I don t think that problem-solving courts are paternalistic. Take drug courts. Throughout my career as a prosecutor and as a judge, all I heard from defense lawyers was: This person needs drug treatment. So, I don t see why it s so difficult for a defendant to decide quickly to opt for drug treatment rather than go to jail. Taylor-Thompson: The choice between jail and drug treatment is an obvious choice. But what about the decisions that are being made by the judge once the defendant opts for treatment? I m worried about the paternalism of these decisions. Weisberg: I think the issue of coercion may arise when defendants are forced to decide whether to proceed in a problem-solving court, but at least the structure is designed to force defendants to confront difficult life choices. Wallace: Rehabilitation as a rationale for punishment will always be paternalistic to some degree. The danger lies in problem-solving courts overstepping basing sentencing decisions on the court s interpretations of social science research. Judge Kluger: That s where the defense attorney has to step in to test the appropriateness of the treatment plan for their clients. Clarke: Another danger that we should be talking about is that government accountability may be swept aside in order for defendants to access treatment. For instance, a defense lawyer may think: I m going to have to set aside that Fourth Amendment claim that I should take time to investigate because I only have 15 minutes to advise my client whether to take a plea that will get him into treatment. Scott Newman: I don t think problem-solving courts require defendants to forfeit due process protections. If defendants want to exercise due process rights in a problem-solving court, they can. Judge Kluger: You have to be realistic. Problem-solving courts are not so different than any other kind of pleabargaining court. Usually, you have until the next day to decide to take this plea or it s off the table. Robert C. Boruchowitz: Now, that s a structural problem that you re carrying over to problem-solving courts. If high volume, urban courts are lousy generally, then why should we replicate that in problemsolving courts? If defendants need two weeks to investigate and make a decision, they should get two weeks. Newman: Why can t defendants make this opt-in decision without the usual gamesmanship between lawyers? Your client is going to know right away whether he or she committed the crime or not and whether it makes sense to take advantage of treatment or not. Prosecutors are giving defendants the opportunity to go into treatment programs. And if the defendant is successful, there often won t be a conviction. In problemsolving courts, the criminal justice system is consciously shifting resources out of the process of adjudicating legal guilt and innocence and into treatment services because we don t want to spend so much time playing adversarial games if defendants are going to end up pleading guilty anyway. Judge Kluger: This is all ground that might be reasonably covered during the planning stage of a problem-solving court. When these courts are starting, one of the things that all the parties should work out is: How much time is needed to give defendants an opportunity to make the most educated decision or to permit defense attorneys to advise defendants in the best way possible? It s in the planning stage where these timing issues can be addressed. Bring everyone to the table and hear what they have to say, and don t go forward without everybody s basic agreement. John Goldkamp: I think it s interesting that we re getting stuck on these concerns about coercion when 210 Judicature Volume 84, Number 4 January-February 2001
6 the Seattle and Portland drug courts have already addressed those issues and devised an approach that has satisfied both prosecutors and defenders. These courts offer a two-week trial period where defendants can enter treatment in the drug court. You go into treatment immediately, except that you have a two-week period during which you can opt out. During this period, you have a right to investigate the strength of the evidence and decide whether to go to trial. So, you re not telling the best part of the story, which is there are localities some of which are even represented here today that have successfully negotiated these concerns about coercion without defeating the aims or attractiveness of treatment. ent? What principles would guide you as you advised your client about the available alternatives to incarceration? Would you use your persuasive powers to the maximum extent possible to get your client into drug rehab, into the mental health system, or into other so-called service systems? Taylor-Thompson: If you re asking whether I would advise somebody who has jumped a turnstile to go into the mental health system, as it now exists, then my answer would be a flat No. If you ask whether I would put this person in a program that somebody has investigated, that targets this defendant s particular needs, and that gives this defendant a second chance if that type of treatment doesn t work, then I might have a different reaction. Newman: I think defense lawyers want to be sure that whatever program their client is sent to has adequate resources and is sincere not just window dressing so that the client has a reasonable prospect of a positive outcome instead of being thrown back in jail. Maxian: I d like to respond to Professor Weisberg s question about using our persuasive powers. I never turn the full strength of my persuasive powers on my client. I don t for two reasons. First, I have no idea what is in my client s best interests I m a nice little white Midwestern girl living in New York City. Second, I believe in the dignity and individuality of my client. It isn t that I don t counsel them or that I don t share my views with them. But I don t lawyer them the same way I lawyer a judge or the same way I might lawyer a district attorney. This doesn t mean that my responsibility towards my clients does not extend beyond the courtroom or that I m not concerned about their lives. Cliff Keenan: I m wondering: Is it the defense attorney s role in a problem-solving court to basically take on social work? During a break, I asked John Stuart: What about the cases that aren t prosecuted, do you have an interest in that person s problems? And, I think John s reply was Zealous advocacy Hartmann: What part of defenders wariness about problem-solving courts comes from fears of altering their roles as zealous advocates? Neuhard: The fear I have is losing the ability to say the emperor has no clothes. I think what I hear coming from the defense bar isn t that these problem-solving courts are a bad idea. I m not opposed to the idea of having more alternatives for my clients. The thing I find regretful about problem-solving courts is that we have to somehow give up our traditional role in order to make problemsolving courts work effectively. My question about problem-solving courts is why do we have to change anything about what we do? Weisberg: If defenders ethical obligation is limited to Protect your clients to the maximum extent possible from state coercion, then what s attractive about problem-solving courts and the alternatives they offer? When we talked about effective lawyering, we spoke about defense lawyers also attaching ethical importance to improving their clients lives. Then the question becomes: Are problem-solving courts a good means to fulfill that goal? Just as a little thought experiment, let s imagine state coercion did not exist. What would be the nature of your ethical obligation to your cliappropriate: No, because they re no longer a client. When the attorneyclient relationship begins, the lawyer assumes responsibility for that client s legal issues. What is the attorney s obligation, if any, to address the client s non-legal problems? Glazer: It s dangerous to say: This is what a social service does and this is what lawyers do. Social service and criminal justice are sort of two halves of the same coin. And if our overall goal is to reduce crime, it s our responsibility to deal with both sides. Neuhard: Well, I think it is my responsibility to counsel clients on how to keep their life going on a path that will keep them out of prison or jail. You re not lawyering them you re trying to communicate what s in their best interest for survival. Wallace: In my mind, attempting to convince your client to take a treatment alternative does not relax the zealousness of your advocacy for that client whether it takes place at the plea stage or at sentencing. I would use a standard of the client s informed choice to guide my ethical obligation. As a defense attorney, I m trying to give clients as much information as possible. When the client makes an informed decision, I will then advocate for it, even if it is at odds with what I believe to be the client s best interest. Thompson: I think you act as both attorney and as counselor for your client. You re saying to the client: You have some options here. My understanding is that client counseling is consistent with client advocacy. You say to the client: Look at these 20 prior convictions. Let s talk about whether or not this 90 days in jail is what you want to do or whether you want to do 180 days in drug treatment. Neuhard: But if your client says, A, can you go into court and say, Not A to the judge? Thompson: There are no circumstances in which you re going to do that. Judge Kluger: I think if you are being asked to do that, then someone is doing something very wrong. Your January-February 2001 Volume 84, Number 4 Judicature 211
7 client should never be in the position where he or she does not want to do something and the lawyer is saying the opposite. I think you should always be zealously representing your client in the best way you know how, but it can be done within the context of other options, like treatment. Stuart: I worry about the effects of collaboration on zealous advocacy. In problem-solving courts, you often have the same prosecutor, the same defender, and the same judge all working together in the same court day after day. Usually, as an advocate, I can tell a certain prosecutor that there is something wrong with his case and then I might not see him again for a week. Or if a particular judge got mad at me because I was making several motions, it wouldn t matter because I would have eight different judges to go to afterwards. I m concerned about the impact of telling the judge, the prosecutor, and the defender that they are all in this little boat together and they have to get along out there on the ocean. That, I think, could have a deleterious effect on the zealous advocacy of the defense attorney. We always have tried to avoid horizontal representation, where the public defender is assigned to the courtroom rather than the client. Judge Kluger: I think that s why it s important to have aggressive, very capable defense attorneys in problemsolving courts. Lawyers have to be trained that you don t stop being an advocate in problem-solving courts. I think the problem is that there isn t enough education or training of the lawyers who are working in these courts about how to do it a little bit differently, but not with less zeal and not with anything less than the client s best interest. Maxian: I feel more like a patient advocate than like a lawyer in a problem-solving court. Most of the significant advocacy is done during the process of setting up the court. To be an effective advocate in a problem-solving court, defenders have to be closely involved in setting it up because so much depends on what treatment is mandated and how it is monitored. Taylor-Thompson: To advocate zealously in a problem-solving court, you need real, long-term training to figure out what kinds of treatment programs actually work, what are an individual s problems, and how to match that individual s problem to a particular program. Defense lawyers, prosecutors, and judges are currently not trained to do this. Clarke: The training gap could be partly addressed through teaching negotiation skills to criminal lawyers. Lawyers in problem-solving courts are largely engaged in negotiation. But nobody is teaching criminal justice negotiation skills, not one program across the country. Esther Lardent: Can public defenders and prosecutors really be effective lawyers in this kind of system? Do we really think judges are the right people to decide among various treatment modalities? Glazer: My understanding of problem-solving courts is that it s not so much the lawyers or the judges that are making these kind of treatment decisions. Rather, the lawyers and judges are relying on trained social service professionals to advise them and tell them what it is that they are seeing in front of them. Stuart: You don t need to have a specialty certificate to be a lawyer in a problem-solving court. Lawyering in these courts is plain old sentencing advocacy. For a long time before problem-solving courts existed, the defense attorney s function has been mostly limited to sentencing advocacy minimizing the amount of punishment or government intrusion. It s a rare case that you get to argue that your client is not guilty and go to trial on the merits. Hartmann: What about the role of the prosecutor? Keenan: My view is that prosecutors, defense attorneys, probation officers and others all have a role to play in the criminal justice system. No one of us can solve the problems of a defendant, a victim or a community alone. We re all just pieces in a larger puzzle. Gansler: I don t think that problem-solving courts require any less zealousness from the prosecutor. I do think that they call upon the prosecutor to become more accountable to a broader cross-section of the community. I represent the state and to some extent the victim. But I also represent the community. Now take domestic violence. The victim of today may be the offender tomorrow. So unless I take a broader view of what it is to be zealous, I ll lose an opportunity to reduce crime. Newman: I m a believer in zealously seeking retribution for serious crime and I can be very retributive in the area of murders and so on. But I think retribution is more moral if there are earlier opportunities in the person s involvement with the criminal justice system to make another choice to appeal to that person s higher self. If you treat low-level offenders as a part of the community, if you treat them according to your aspirations for them, then it really makes a difference in reducing crime. So I m willing to do things differently to get that result. For instance, as a prosecutor in drug court, I had to listen to medical experts and accept the fact that relapse is a normal part of recovery. That s a bitter pill to swallow for very rules-oriented prosecutors, but I had to take that leap. Earle: In Austin, we brought the public into the process. We found ways to involve the community in almost every aspect of what our prosecutors office does from setting enforcement priorities to entertaining solutions to gang violence. I think that has made me a better prosecutor not a worse one. Measures of success Hartmann: Are problem-solving courts achieving better outcomes for defendants and communities? How should we measure their success? Judge Kluger: I think it s a difficult question to answer. Different problem-solving courts will have different measures of success. For instance, in drug courts it s clear that success means that a defendant finishes drug 212 Judicature Volume 84, Number 4 January-February 2001